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Pugh v. Winslow Construction Co.

Decided: November 1, 1943.

GEORGE E. PUGH, PETITIONER-DEFENDANT,
v.
WINSLOW CONSTRUCTION COMPANY, RESPONDENT-PROSECUTOR



On certiorari from the Atlantic County Court of Common Pleas.

For the petitioner-defendant, Maurice Y. Cole.

For the respondent-prosecutor, John W. Taylor.

Before Brogan, Chief Justice, and Justices Bodine and Colie.

PER CURIAM.

This is a compensation case and the application is for additional compensation on account of increased disability, the petitioner claiming present total disability. The deputy commissioner

in the Bureau determined that the petitioner's disability was permanent and total and on appeal the Atlantic County Court of Common Pleas affirmed that finding. The sole issue here is the extent of the petitioner's disability as a result of the accident. The respondent employer, prosecutor of this writ, contends as it contended in the Bureau and the Pleas that the petitioner's disability does not exceed seventy-five per cent. of total, for which compensation has been paid and that any disability beyond that is the result of causes independent of the accident, particularly from the disease of syphilis with which the petitioner has been infected for many years. The petitioner's accident, admittedly compensable, occurred in 1930. In 1936 a claim petition for compensation was filed alleging that the injuries had resulted in total, permanent disability. It was then determined that the petitioner suffered a permanent, partial disability to the extent of fifty-five per cent. of total, and an award was accordingly made. A second such petition was filed in June, 1937, and concluded in 1938. The deputy commissioner made no determination but rather ordered a judgment for the petitioner on the basis of a settlement, fixing seventy-five per cent. of total disability as due to the accidental injury and the compensation therefor was paid. A third such petition was filed in October, 1939, the claim being that the petitioner's disability had again increased since the previous award based on the settlement and the claim was that the disability had increased to a point where it resulted in total, permanent disability. This matter was heard and on February 11th, 1942, the deputy commissioner determined that the disability in question had increased and was then permanent and total. Thus the award was increased twenty-five per cent. over that which had last previously been made.

The argument for reversal, in the main, is that the petitioner failed to discharge the burden of proof and that the Bureau fell into legal error by permitting a collateral attack upon the findings of fact and rules for judgment previously entered under the judgments of December, 1936, and April, 1938; further, that it was error to determine that the petitioner's loss of vision in his right eye was chargeable to the

accident inasmuch as previously it was said that such loss of vision was unrelated thereto; also that the allowance of compensation beyond the 400 week period provided by R.S. 34:15-12(b) was illegal.

The accident happened on January 30th, 1930, Pugh, the petitioner, fell from the seventh floor of the building in which he was working. One of his legs and an ankle were broken. His hip was broken and his back and shoulder dislocated. Shortly thereafter he complained about impaired vision in his right eye. In August, 1940, there was loss of sight in that eye.

On the fact issue of the case there is much medical testimony. The testimony offered by Dr. Major, for the petitioner, was the result of five examinations made at different intervals, the first in 1938; two in 1940 and two in 1941. The doctor was of the opinion that the "petitioner was one hundred per cent. totally disabled" and that there had been an increase in disability over the last time the matter had been before the Bureau. This witness frankly said that the blindness in one eye could be due to the disease he had or the injuries; that the disease was latent at the time. Dr. Fowler, for the petitioner, testified to the injuries, already mentioned, plus the fact that there was a recurring osteomylitis at the ankle joint; that the disability had not been retarded at all but had progressed since 1938. The doctor disclaimed knowledge that the petitioner was infected with syphilis. Dr. Raynor testified that he had examined the petitioner twice in 1941. He described the disability in detail, said that Pugh could not move around except with difficulty and had to use a cane for support; that the achilles tendon in the right foot had contracted causing his heel to tilt upward and that the adjacent tendons had also contracted; that the sight of the right eye was lost and there were some deformities in the lumbar vertebrae. Concluding as he ...


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